Whiplr Terms of Service
Effective Date, May 3, 2017
2. Eligibility and Age Verification
· No part of our Services is directed to persons under the age of eighteen (18) years (twenty-one (21) years in countries where eighteen (18) years is not the age of majority), who may not directly or indirectly view, possess or otherwise use the Services.
· By accessing or using the Services you represent and warrant that you have reached the age of majority in your county, and that you have the right, authority and capacity to enter into, abide and perform all of the terms of these Terms.
· It is your responsibility to confirm that your use of Whiplr Services is permissible under the applicable laws and regulations where you make use of Whiplr Services. If any applicable laws and regulations prohibit your use of Whiplr Services, you may not use our Services. You also represent and warrant that you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity.
3. Whiplr nature and location data:
· THE WHIPLER SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE WHIPLR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.
· THE SERVICES IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE. OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
4. License ,Proprietary Rights and Ownership
· All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, trademarks, service marks, trade names, and other intellectual property rights related thereto, including, but not limited to, the mobile device applications, and all other elements contained in the Whiplr Services (collectively, the " Materials") are the property of the Company or its subsidiaries or affiliated companies and/or third-party licensors.
· You agree not to sell, license, distribute, copy, modify, publicly perform or display, reproduce, transmit, publish, transmit, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials, without a prior written consent of Whiplr. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices. These Terms do not convey to you any interest in or to the Materials, but only a limited, revocable right of use in accordance with the Terms and you acknowledge and agree that except for such limited right, under no circumstances do you acquire any right, title or interest to any part of the Material, or any related materials. If you send us or otherwise share with us any ideas, comments, or suggestions regarding the Materials, you acknowledge and agree that we may use such ideas, comments or suggestions in any manner, for any purpose, and without the need for any further compensation, approval or consent.
2. User's license (Mobile App)
· In order to use the Whiplr Services on a mobile device, you must have a mobile device that is compatible with the Whiplr Services. The Company does not warrant that the Whiplr Services will be compatible with your mobile device.
· Subject to the provisions of these Terms, the Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Whiplr Services account on one mobile device, owned, rented or leased solely by you, for your personal, noncommercial use. You may install a copy of the Application on an iOS product that you own or control or permitted by the Usage Rules set forth in the App Store Terms of Service https://www.apple.com/legal/internet-services/itunes/ .
· You acknowledge that the Company may from time to time issue upgraded versions of its software, and may automatically upgrade the version of such software that you are using on your device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. You agree that the Company will not be liable to you for any such modifications.
· The foregoing license grant under these Terms is not a sale of the Whiplr Services or the Company's software or any copy thereof and the Company or its third party licensors or partners retain all right, title, and interest in the (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. The Company reserves all rights not expressly granted under these Terms.
5. Open Source
· With respect to any open source or third-party code that may be incorporated in the Whiplr Services, such open source code is covered by the applicable open source or third-party license, if any, authorizing use of such code. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software.
6. Usage Rules, Prohibited Content and Behaviors
· You acknowledge and agree that you are solely responsible for the content and information that you post, upload, publish, link to, transmit, record, display or otherwise make available on the Services or transmit to other users, including chat, text messages, videos, photographs, images, or profile text, whether publicly posted or privately transmitted (collectively, "Content").
1. Personal Use
· Our Services is for personal use only; our users may not use the Services or any content contained in the Services (including, but not limited to, content of other users, designs, text, graphics, video, images, information, logos, audio files, software and computer code) in connection with any commercial endeavors or non-private use (including, but not limited to, making unsolicited offers, advertisements or proposals, or soliciting any user to buy or sell any promotional material, products or services not offered by the Company, bulk or chain mailing of commercial advertising, charity requests, petitions for signatures, social functions for commercial purposes, etc.).
2. Prohibited Content and Behaviors
· You may not post, display, store, upload, send, disseminate, transmit or otherwise make available any information or material to the Services, or use the Services in connection with material, which:
a. a reasonable person or user could deem to be: offensive, inaccurate, incomplete, abusive, obscene, profane, objectionable, defamatory, libelous, indecent, pornographic, threatening, intimidating, advocating harassment or intimidation, distressing, vulgar, hatefulracially or ethnically offensive or otherwise offensive to any group or individual, promoting racism, bigotry, hatred or physical harm of any kind against any group or individual;
b. promotes commercial activities (including, but not limited to, contests, sweepstakes, barter, unsolicited advertising, pyramid schemes, "junk mail" or "spamming");
c. promotes information that is false or misleading, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
d. exploits people in a sexual, violent or other illegal manner, or solicits personal information from anyone under the age of 18;
e. promotes illegal activities, or any material that promotes the violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights (including, but not limited to, patents, trademarks, trade secrets, copyrights), data protection and privacy (including, but not limited to, material which disseminates another person's personal information without his or her permission, including videos or photographs);
f. contains restricted or password only access pages, or hidden pages or images, or solicits passwords or personal identifying information for commercial or unlawful purposes;
g. impersonates, or otherwise misrepresents affiliation, connection or association with any person or entity;
h. does not comply with our content guidelines, available here: http://whiplr.com/home/guidelines .
· You represent and warrant that you will not:
i. use the Services or any location information displayed within the Services to "stalk", harass, abuse, defame, threaten or defraud other users, or collect, attempt to collect, or store location or personal information about other users;
ii. impersonate any person or entity or solicit money from any user;
iii. use the Services in an illegal manner or to commit an illegal act;
iv. access the Whiplr Services accounts of other users, or misrepresent the source, identity or content of information transmitted via the Whiplr Services;
v. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Whiplr Services, features that prevent or restrict use or copying of any content accessible through the Whiplr Services, or features that enforce limitations on use of the Whiplr Services;
vi. intentionally interfere with or damage operation of the Whiplr Services or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, Trojan horses, worms, or other harmful or disruptive code, components or devices, or interfere with or disrupt the Whiplr Services or the servers or networks connected to the Whiplr Services;
vii. use the Whiplr Services in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Whiplr Services could result in death, personal injury, or severe physical or property damage;
viii. attempt to gain unauthorized access to the Whiplr Services, or any part of it, other accounts, computer systems or networks connected to the Whiplr Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Whiplr Services or any activities conducted on the Whiplr Services; or
ix. Use any robot, spider, scraper or other automated means to access the Whiplr Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Whiplr Services or modify the Whiplr Services in any manner or form, nor to use modified versions of the Whiplr Services, including (without limitation) for the purpose of obtaining unauthorized access to the Whiplr Services;
x. Express or imply that any statements you make are endorsed by the Company without prior written consent.
7. User Account
· You are responsible for the security on the mobile device on which the Whiplr Services are installed.
· If you choose to use the Whiplr Services or register for an account with Whiplr Services ("Whiplr Account"), you represent and warrant that: (a) all required registration information and content you submit or post on the Site is truthful and accurate, and in compliance with all applicable laws and regulations; and (b) you have the right to post the content on the Whiplr Services (b); and (c) you will maintain the accuracy of such information, and promptly update any information provided by you that subsequently becomes inaccurate, incomplete, misleading or false.
· You are responsible for maintaining the confidentiality of your account login information and the security of your mobile device, and are fully responsible for all activities that occur under your account.
· You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of your account or any other breach of security.
· You are solely responsible and liable for the activity that occurs in connection with your account. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
· The Company does not control the content of the accounts and profiles.
· The company does not: (i) guarantee the accuracy, completeness, or usefulness of any third party and/or member content provided through the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears in the Service. Under no circumstances will the company or its affiliates be responsible or liable for any loss or damage resulting from your reliance on information or other content posted in the Service, or transmitted to or by any users. Any advice, information or other content that may be posted in the Service is entirely for entertainment purposes only. The Company makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Service.
8. User Submissions
· The Company allows the submission of content and materials (such as pictures, images, notes, audio files, videos, feedback, ideas, concepts, or creative suggestions) by you and other users (" User Submissions"), and the hosting, sharing and/or publishing of such User Submissions.
· You understand that you are solely responsible for all content and material that you provide through the User Submissions, as well as your involvement with other users. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable.
· You understand and agree that the Company will assume no responsibility for any loss or damage incurred as the result of any such interactions or in connection with or arising from User Submissions, as well as the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions.
· The Company assumes no responsibility and makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, we reserves the right to prevent users from submitting User Submissions and to edit, restrict or remove User Submissions for any reason and without any notice. Further, the Company does not endorse and has no control over the content of User Submissions submitted by other users.
· The Company reserves the right to investigate and take any legal action against any user, including removing from the Whiplr Services any material deemed by the Company to be in violation of the Terms, and terminating, disabling or suspending the account of the user and his or her access to the Whiplr Services, in the event of a conduct which the Company regards as inappropriate or unlawful, or for any reason and without any notice.
With regards to User Submissions, you affirm, represent, and warrant that:
· You own, or have the necessary licenses, rights, consents, and permissions to use, and authorize the Company to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Whiplr Services and these Terms. You represent and warrant that any posting and use of your User Submissions by the Company will not infringe the rights of any third party, including without limitation, intellectual property rights.
· You have the written consent, release, and/or permission of any identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms.
· For the purpose of clarification, the terms herein will not impede your ownership rights in your User Submissions.
· User Submissions are owned by the user who submitted them, subject to the Company's license to such User Submissions under these Terms. User Submissions may not be shared, displayed, disseminated or duplicated by any other party other than the submitted user, except as permitted under these Terms.
· You hereby grant, and you represent and warrant that you have the right to grant, to the Company and its affiliates an irrevocable, perpetual, nonexclusive, transferable, sub-licensable, royalty-free and fully-paid, worldwide license to reproduce, distribute, copy, record, publicly display and perform, play, adapt, modify and prepare derivative works of, incorporate into other works, and otherwise use your User Submissions, and to grant sublicenses of the foregoing, solely for the purpose of including your User Submissions within the Whiplr Services.
· You hereby consent to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.
9. Payments and cancellation
· Some of the features, upgrades or portions of the Whiplr Services are fee-based (collectively "Fee-Based Features"). All payments made to the Company for use and access to the Fee-Based Features are final and all charges are nonrefundable. Cancellations are effective the following billing period in which payment is due.
· Payment for Fee-Based Features is processed via the Apple Store or Google Play Store.
· If you have an account set up for recurring billing, you may cancel your account at any time. You will continue to have the same access for any billing period or periods for which you have paid.
· If your profile content or your conduct within the Whiplr Services violates our Terms, your access and account may be immediately terminated and all payments forfeited.
· If you wish to disable or terminate your account or in the event that your account is terminated you must contact either the Apple Store or Google Play Store directly in order cancel the recurring billing option.
· The Google Play Store or the Apple App Store have their own payment and refund terms and conditions to which you must agree to abide by before purchasing any of the Fee-Based Features.
· You may purchase virtual credits through our Services, which will allow you to donate virtual gifts to other Users. Please be aware that the virtual credits are non-refundable, and that the recipient of the virtual gift may respond to you at his/her own discretion. The company does not guarantee that the recipient will respond to you and makes no representations or warranties to that extent. Virtual gifts are intended for entertainment purposes only and cannot be redeemed for cash within the Whiplr App.
· Your account will be charged for the purchase in accordance with the
terms disclosed to you at the time of purchase as well as the general terms
for in app purchases that apply to your application platform (App Store,
Google Play, etc.).
For users who downloaded Whiplr app from the Google Play store - please note that the virtual credits may expire within 60 days of the date of purchase - after that period, you will not be able to use the virtual credits. Please ensure that you use your virtual credits within that time limit.
10. Third-Party Websites, Products and Services; Advertising
· Parties other than the Company may provide services or sell products via the Whiplr Services. The Company may include such advertisements or promotions in its Services, or links to other services or applications (collectively "Third Party Websites" or "Applications") solely as a convenience to its users. The Company does not screen, audit, or endorse Third Party Websites or Applications, or the information, material, products or services contained on, or accessible through, Third Party Websites or Applications.
· The Company makes no express or implied warranties with regard to the information, material, products or services that are contained on, or accessible through, Third Party Websites or Applications. Access and use of Third Party Websites or Applications, is solely at your own risk.
· You agree that the Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any correspondence or business dealings or as the result of the presence of such advertisers on the Whiplr Services.
· By your use of Third Party Websites or Applications you acknowledge and agree that the Company may transmit User Submissions to Third Party Websites or Applications through application protocol interfaces. The Company is neither responsible for the transmission of the User Submissions from the Whiplr Services to Third Party Websites or Applications, nor for the use of the User Submissions on any Third Party Websites or Applications. Accordingly, if you decide to access Third Party Websites or Applications, you do so at your own risk and agree that your use of any Third Party Sites or Third Party Applications is on an "as-is" basis without any warranty as to the Third Party Sites or Third Party Applications actions, and that these Terms do not apply to your use of any Third Party Sites or Third Party Applications.
· The Company and its licensees may publicly display advertisements and other information adjacent to Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
You agree that if we, in the good faith believe that you have violated any of the terms and conditions of these Terms, we may disable or terminate any account you have with the Whiplr Services or your use of the Whiplr Services or any portion thereof and may remove and discard all or any part of your account or any User Submission, at any time with immediate effect. You further agree that we will not be liable to you or any third-party for any such termination.
· Any alleged fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies the Company may have at law or in equity.
· In the event that your account is terminated you must contact either the Apple Store or Google Play Store directly in order cancel the recurring billing option.
12. Warranty Disclaimers
· WHIPLR SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WHIPLR SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE COMPANY, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
· THE COMPANY AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WHIPLR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WHIPLR SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS.
· THE COMPANY AND ITS SUPPLIERS AND PARTNERS (INCLUDING THE COMPANY'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE OTHER WHIPLR SERVICES IN TERMS OF SECURITY, AVAILABILITY, SAFETY, CORRECTNESS, RELIABILITY, ACCURACY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICES OR EQUIPMENT NECESSARY TO ACCESS THE WHIPLR SERVICES. YOU ACKNOWLEDGE AND UNDERSTAND THAT WHILE THE COMPANY IS WORKING HARD TO SAFEGUARD YOUR DATA, ANY DATA YOU SEND OR RECEIVE DURING YOUR USE OF THE WHIPLR SERVICES (INCLUDING DURING CHATS OR CONVERSATIONS) MAY NOT ALWAYS BE SECURE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE SUBMIT OR OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE WHIPLR SERVICES AT YOUR OWN DISCRETION AND RISK.
· CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
· You agree to indemnify, defend, and hold the Company (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, brought by a third party arising out of or related to your use or misuse of the Whiplr Services generally, any violation of the rights of any other person or entity by you, any breach or violation by you of these Terms, or your use the Whiplr Services to meet another user in-person or to locate and attend any offline place or event.
· THE Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
15. Limitation of Liability and Damages
· YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL THE COMPANY (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, TRANSMISSION, STORAGE OR MAINTENANCE OF YOUR INFORMATION, INCLUDING YOUR LOCATION OR PRIVATE INFORMATION ; (B) YOUR USE OR INABILITY TO USE THE WHIPLR SERVICES; (C) THE WHIPLR SERVICES GENERALLY (INCLUDING ITS SOFTWARE) OR SYSTEMS THAT MAKE THE WHIPLR SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH WHIPLR SERVICES OR ANY OTHER USER OF THE WHIPLR SERVICES, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
· IN NO EVENT SHALL THE COMPANY'S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS OR SUPPLIERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WHIPLR SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE WHIPLR SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
· APPLICABLE LAW IN YOUR STATE OR LOCATION MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT THE COMPANY'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
· You hereby release and forever discharge The Company (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present or future dispute, claim, liability, controversy, right, demand, obligation, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to any interactions with, or act or omission of, or User Submissions provided by, other users of the Whiplr Services , or any third party site, products, services, and links included on or accessed through the Whiplr Services.
· IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
· APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE RELEASE MAY NOT APPLY TO YOU. IN SUCH CASES, THE COMPANY'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
17. Apple App Store and Google Play Additional Terms and Conditions (Mobile App)
· You acknowledge and agree that the availability of the Whiplr Services is dependent on the third party from whom you downloaded the Application, e.g., the Google Play Store or the Apple App Store.
· You acknowledge that these Terms are between you and the Company and not with Apple Inc. ("Apple") or Google Inc. ("Google"). The Google Play Store or the Apple App Store have their own terms and conditions to which you must agree to abide by before downloading the Application from them. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable terms and conditions of the Google Play Store or the Apple App Store.
Please note that the following terms apply in additional to all other provisions in these Terms, if you downloaded our Application to your mobile device from the Apple App Store or Google Play Store.
· You acknowledge and agree that:
i. Apple has no obligation to furnish any maintenance and support services with respect to our Application or handle any warranty claims.
ii. Apple is not responsible for addressing any claims you have relating to our Application, including product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that our Application fails to conform to any applicable legal or regulatory requirement.
iii. Apple and Apple's subsidiaries, are third party beneficiaries of these Terms and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
iv. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you (if applicable) and to the maximum extent permitted by applicable law, and Apple will have no other warranty obligation whatsoever with respect to the Application.
v. Any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company, in accordance with the provisions of these Terms.
vi. Apple shall not be responsible nor shall you refer to Apple any claim of any third party that the Application or your possession and use of the Application infringes that third party's intellectual property rights. .
18. Compliance with Law & Export Control
· The Whiplr Services are intended for use only in compliance with applicable laws and you undertake to use it in accordance with all such applicable laws. Without derogating from the foregoing and from any other terms herein, you agree to comply with all applicable export laws and restrictions and regulations and agree that you will not export, or allow the export or re-export any part of the Whiplr services in violation of any such restrictions, laws or regulations. You agree to the foregoing and represent and warrant that: (a) you are not located in, under the control of, or a national or resident of any restricted country under U.S or other applicable law, and, (b) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (c) you are not listed on any U.S. Government list of prohibited or restricted parties.
19. Severability and Waiver
· If any provision of these Terms shall be void, unlawful, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions of the Terms. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms shall in no manner affect such party's right at any time to enforce the same. A waiver of any breach of any provision of these Terms shall not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
· These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by the Company without restriction.
21. Governing Law and Arbitration
· Our goal is to learn about and address our users' concerns and, if we are unable to do so to their satisfaction, to provide our users with a neutral, fair, streamlined and cost-effective means of resolving the dispute quickly.
· The user agrees to notify us about any dispute he or she has with the Company, relating to the Terms or to the Whiplr Services, by contacting us.
· Subject to the provisions of this Section, any dispute in connection with these Terms shall be referred to and decided exclusively by arbitration to be held in London, UK before a single mutually agreed professional arbitrator who specializes in the matter to be resolved (the "Arbitrator").
· The Arbitrator shall be appointed within 14 business days by mutual consent of the parties and in the absence of such consent, within additional 7 business days by the International Chamber of Commerce ("ICC") in the United Kingdom and shall be granted complete authority to resolve the dispute.
· The Arbitrator shall commence the arbitration process within 14 business days from his/her appointment, shall conduct the arbitral proceedings in English, continuously and shall publish the final non-appealable arbitral award within 90 business days or a shorter period to be agreed by the parties. The Arbitrator shall give reasons for the arbitral award. The Arbitrator shall be bound by the Rules of Arbitration of the ICC. The arbitration proceedings shall be held before a private tribunal to which only the Arbitrator, the parties and their professional representatives, and any witnesses and experts, shall be present and the content of the proceeding will be held in confidence. The decision/award of the Arbitrator shall be final and binding on the parties. The provision of this Section shall be regarded as a binding arbitration agreement.
· Each party shall be entitled to immediate interdictory relief from any court of competent jurisdiction, without the necessity of proof of damage or proof of actual damage, as may be proper to preserve and protect its rights. Such right to interdictory relief shall be in addition to such party's other rights under this Agreement and/or at law in respect of such breach.
· These Terms shall be governed by and construed in accordance with the laws of England, without giving effect to any principles of conflicts of law.
22. Entire Agreement
· These Terms and any supplemental or incorporated documents or policies constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
· The Company reserves the right, at its sole discretion, to alter, modify, add, or remove portions of the Terms at any time, without any prior notice. These changes will be effective immediately. We urge you to check the Terms periodically for changes.
· Your continued use of the Whiplr Services after any alteration to the Terms constitutes your binding acceptance of such alterations.
24. Contact Us
· Please contact us with any questions or queries regarding the Terms, at firstname.lastname@example.org
I HAVE READ THESE TERMS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.